They're Not 'Orphan Works', They're 'Hostage Works'

from the time-to-liberate-them dept

Words matter -- just think of the number of times flame wars have broken out in Techdirt's comments over whether you can "steal" music or films. But one phrase that nobody really questions is "orphan work". And yet, as Lydia Pallas Loren
points out in a brilliant paper, this is a loaded term with a very particular agenda:

In the metaphor of the romantic author, the works he creates are his children, born of his labor and genius. He is given rights to control, and thus protect, his children. Calling works for which the copyright owner cannot be located "orphans" pulls on that metaphor and triggers the concerns any humane person would have toward abandoned children. These orphans have suffered the tragic loss of their parent. These are works whose parents have been lost or killed. We reflexively begin to believe that orphan works need the kind of protection that society provides to abandoned children.

Although that orphan metaphor sounds innocent enough, Loren believes that it is one of the reasons why it has proved so difficult to pass orphan works legislation:

The perceived evils of the world are multifold and include Dickensian images: bleak orphanages, barren workhouses, and street gangs assembled by Artful Dodger of Oliver Twist, where the unfortunate children are put to work for commercial entities exploiting whatever commercial life is present in the child. These orphan exploiters fail to invest in or care for the children properly, underfeed them, and yet usurp the work-value of the orphan child. This implied narrative of the potential abuse of orphans has impeded the passage of orphan works legislation.

It's a brilliant explanation, and leads Loren to suggest an alternative, provocative metaphor: not "orphan works", but "hostage works":

When viewed as a "hostage work problem" it becomes clear that these works do not need foster parents or protection against inappropriate exploitation -- the end result of an orphan metaphor. Nor do these works need new owners -- the end result of a metaphor of abandoned or neglected property. What these works need are "special forces" that can free them from the constraints placed on them by the combination of the regulatory effects of copyright and the lack of a locatable owner who can grant permission to avoid the consequences of the regulation.

Pursuing that metaphor, she suggests that "special forces" who liberate those hostages should be granted immunity from legal action by any owners of those works that eventually turn up, provided the former meet two criteria:

First, the entity must not be negligent in designating a work as a hostage work or in its approach to correcting status information and removing digital access to a work inaccurately (albeit non-negligently) identified as a hostage. Why negligence is the right standard and what might constitute negligence is explored more fully below. Second, in order to gain special forces immunity from monetary liability the entity should be required to provide an open access copy of the work with embedded hostage freeing information related to that work.

That's clever, because it ensures that the "special forces" who liberate the hostage works can't simply imprison them again, but must set them free in the form of open access copies.

It's a wonderful solution employing a thought-provoking metaphor, and I urge you to read the full paper. It provides a full exploration of the legal details of how it might work -- if only people could look beyond the misleading perspective of "orphan works", and see them as "hostage works" instead.

"What these works need are "special forces" that can free them from the constraints placed on them by the combination of the regulatory effects of copyright and the lack of a locatable owner who can grant permission to avoid the consequences of the regulation."

Based on that description, maybe 'enslaved works' is a better term. The works are imprisoned within our broken system of injustice.

If you can not to write - don't write

Once upon a time, great Russian poet, Pushkin said: "If you can not to write - don't write". The point is, that urge to write should be internal, it doesn't come from need for money; or at least shouldn't come.
Pushkin definitely did not wrote for money - as wealthy aristocrat he had all the money he ever needed. And he wrote match, match more than all kind of "authors" screaming for protectionist racket in US.

I prefer Orpahn

The reason most works are orphaned is because they aren't worth the authors time or effort to monetise. Where they get cranky is when someone else does a better job of promoting their work - and sometimes even profiting.

The problem with the negligence test suggested - is that it would be bastardised to suit the whims of the authors and publishers. Nobody would be safe unless there was a clear government defined protocol e.g. submit open access copy of orphaned work to a copyright registry, after x years (4-7 years) if the author has not claimed the work it lapses into public domain and is recorded as such.

During the registration period (4-7 years) the work would still be 'locked' for usage, but an open copy would now be stored on record so the content is not lost to future generations.

Re:

I don't think so, enslaved gives the impression that the works are actually being used for something, which they're not, they're just sitting there unused. I think imprisoned works or hostage works is better.

Re: If you can not to write - don't write

Very interesting example of how metaphors affects our thinking and perception of matters. I hope people will take the time to read the whole paper.

I do think however that a much simpler solution, assuming that it was politically viable in the short term, would be to simply drastically reduce the copyright term (something which the author herself seems to agree with).

Registered or not, copyrights that have been assigned and reassigned over several generations are nearly impossible to track down. What's the point? To grant privileges for a century or more that is beneficial to a tiny minority, to the determent of everyone else? Or to insure that the work will be lost and unusable for the rest of time? Regardless of the reasons, those are the outcomes.

Even if copyright had a sane length, say 14 years, it's still possible to lose track of a work's creator--especially with works that only existed online. 14 years ago, I was already living part of my creative life online, but almost none of those accounts exist anymore. And forget tracing any of those defunct account names to me, most didn't have any real personally identifying information. Even if they did, my real name is hardly unique. And neither were my account names, those have also been used by others the world over. So if, for some unfathomable reason, someone wanted to use my older works, they would have fairly slim chance of contacting me.

Re: I prefer Orpahn

Heck even that would be an improvement over the current system, since even if the works remained locked up for a few years before entering the public domain, they would at least enter the public domain after that.

Re:

Even if copyright had a sane length, say 14 years, it's still possible to lose track of a work's creator--especially with works that only existed online.

But even that problem can be solved by reinstating the registration requirement. It's not registered? Then it's public domain. If it's registered, the registration provides a clear indication of who the copyright holder is and how to contact them.

Re:

+100 internets to you, good ma'am.

Add to the picture a fat rich cleric preaching to the crowds that the public domain is much more evil than being held a hostage. For added allegory make him the head of Messianic Apostolic Front for Intellectual Assets church.

No, I don't want to be tracked down. It's not my job to give out my name and address every time I make something so you don't have to cry about my work being "orphaned". Just because I draw something or write something doesn't make me obligated to attach my whole life to it. And just because *you* don't know what's going on with a work, doesn't mean *I* don't know what's going on with it or my intentions regarding it.

Not being able to find the original author to ask permission to use the work, *doesn't give you permission to use the work*!

Or, what if I do have a method where people can contact me, but someone decides to remove my watermark with my website or email or whatever on it, and (illegally) posts it somewhere else? Is it MY fault you can't find me??

"All rights reserved" exists for a reason...

And no, you can't build yourself a cabin on my property by the lake, either. Not knowing my phone number to call and ask about it is not an excuse. :P

Change the copyright to a specific length of time and all of this is solved - you find something, hold onto for X years, and you'll know the work is at least that old and the copyright has expired. A designation for "orphaned" works is not required.

Re: No, I don't want to be tracked down

Not being able to find the original author to ask permission to use the work, *doesn't give you permission to use the work*!

So what happens when you see somebody using the work? Are you going to send them some anonymous message saying “I own the copyright on this, but I’m not going to tell you who I am or how to find me. You’re just going to have to take my word for it that you’re infringing”?

Re:

Sooo... you want to be able to enforce your copyright over something you've made, without actually providing any identifying information about yourself, either to the people who might use a work that has no identifiable copyright, due to not having a name attached to said copyright, or those that would catalog copyrights so it's easy to find out what is and is not in the public domain...